The Problem of State Succession and the Identity of States under ...

The Problem of State Successionand the Identity of States underInternational Law

Matthew C.R. Craven'

AbstractAlthough in recent years the issue of state succession has once again assumed a prominence

in international legal practice, there remains considerable doubt and confusion as to the

content and application of relevant rules and principles. The problem, it is argued, is not so

much the lack of state practice, but a failure to appreciate fully the conceptual problems that

underlie the construction of doctrine. In an attempt to clarify matters, this article reflects

upon two categories of problems that raise continuing difficulties: problems of substance and

methodology, and problems of analytical structure. In each case it is argued that the heart of

the problem lies in the approach taken as regards the creation, assumption or Imposition of

legal obligation In International law, and In the 'construction' of the legal subject It Is the

latter point which is taken up in the final section, where an attempt is made to illustrate why

international law needs to incorporate within its terms a substantive, rather than merely a

formal, conception of the state, and to show how otherwise it Is incapable of explaining legal

continuity in times of radical change.

* Senior Lecturer In Law, Department of Law, School of Oriental and African Studies. Thomhaugh Street,London. WC1H OXG. United Kingdom.

European Journal of International Law 9 (1998), 142-162

The Problem of State Succession and the Identity of States under International Law 1 4 3

1 IntroductionIf there is one common theme running through all recent literature on the law of statesuccession. It is that the subject is largely conliised and resistant to simple exposition.1

Rarely is mention made of the topic without reference to the complexity of issuesinvolved, the almost total doctrinal schism that has polarized thinking, and the lack ofany agreed theoretical structure.2 This may seem surprising given the vast amount ofliterature on the subject,3 the fact that the matter has been considered extensively bythe International Law Commission,4 and that two international conventions on thelaw of state succession have been adopted.5 Indeed, the overriding impression is thatthe more that is written on the subject, the less clear or coherent the whole becomes.There is a risk, therefore, that even this essay, written with the aim of clarification, willdo little more than muddy the already murky waters. It is thought, however, that alittle reflection upon the nature of the problems that arise may go some way towardsameliorating their effect

The lack of common agreement on some of the central Issues in the law of statesuccession has become particularly evident in the wake of the territorial/politicalchanges in Central and Eastern Europe,6 particularly following the 'dissolution' of the

Jennings remarks, for example, that the law of state succession 'Is a subject which presents such a richdiversity of practice as to give some plausibility to a surprisingly varied range of theoretical analysis anddoctrine'. Jennings, 'General Course on Principles of International Law', 121 RdC (1967), at 437.The ILC commented, for example, that '[a] close examination of State practice afforded no convincingevidence of any general doctrine by reference to which the various problems of succession in respect oftreaties could find their appropriate solution'. Yearbook ILC (19 74 — H. part I), at 168. para. 51. Cestrenremarks similarly that The elucidation of this question Is rendered difficult by the absence of generalInternational treaties and In view of the great instability in the practice observed by different States Indifferent periods. It is. therefore, not surprising to find that differences of opinion, even with regard tocertain fundamental aspects of the problem, prevail in the doctrine of the law of nations.' See Castren.'Obligations of States Arising from the Dismemberment of Another State1, 13 Za6RV (1951) 753.Some of the most prominent works are D. O'Connell. State Succession In Municipal and International Law.vols. I and n (1968); E. Fellchenfeld. Public Debts and State Succession (1931); A. Keith, The Theory of StateSuccession with Special Referenceto English and Colonial Law (1907):O.Udokang, Succession of New States toInternational Treaties (19 77); A. CavagUeri, La dottrinadeUasuccesslonedi stato a statoe 11 suovaloregluridico(1910); Hershey. The Succession of States'. 5 AJIL (1911) 285; Jenks. 'State Succession in Respect ofLaw Making Treaties'. 29 BVML (1952) 105.

The problem of state succession was placed on the ILCs agenda at Its first session In 1949. following therecommendation of Lauterpacht in his survey (UN Doc A/CN.4/1/Rev.l. 10 Feb. 1949). 1 Yearbook ILC(1949) 53, UN Doc A/CN.4/Ser.A/1949.

Vienna Convention on State Succession hi Respect of Treaties. 17ILM (19 78) 1488: Vienna Conventionon State Succession In Respect of Property. Archives and Debts, 1983. 22 ILM (1983) 306.See generally, Shaw. 'State Succession Revisited'. 6 Ftnn.Y.LL (1995) 34; Schachter, 'State Succession:The Once and Future Law', 33 Vo. /. lnt'l L. (1993) 253: Martins, 'An Alternative Approach to theIntematkmal LawofState Succession'. 44 Syr.LK (1993) 1019; Lloyd, 'Succession. Secession, and StateMembership In the United Nations'. 26 N.Y.V.J.LLP. (1994) 761: Scharf, 'Musical Chats: TheDissolution of States and Membership m the United Nations'. 28 Cornell lnt'l LJ. (1995) 29; Williams.•State Succession and the International Financial Institutions: Political Criteria v. Protection ofOutstanding Financial Obligations'. 43 ICLQ (1994) 776.

144 EJJL 9 (1998), 142-162

USSR,7 Yugoslavia,8 and Czechoslovakia,9 and the unification of Germany.10 Itremains unclear, for example, whether and to what extent the Federal Republic ofYugoslavia (Serbia-Montenegro) remains bound by the treaties of the formerYugoslavia.11 If it is not accepted as the 'continuation' of the former Socialist FederalRepublic of Yugoslavia (as indeed is implied by its exclusion from participation in theUN12), can it still be considered to be a party to the Genocide Convention and therebyfound the jurisdiction of the ICJ in the present case?13 If it is a party to the Convention,as the Court seems to have assumed, there is a need for further consideration as to whythat is the case (especially as it has not issued a notification of succession). Theposition is all the more confused since some element of continuity appears to beaccepted in the practice of treaty depositaries, while actively opposed by certainstates.14

The case of German unification was less overtly problematic as far as statesuccession was concerned, but nonetheless raised a number of fundamental

See, e.g., Koskennleml and Lehto, 'La succession d'Etats dans 1'ei-URSS, en ce qul concernparttculierement les relations avec la Finland*' 38 AFDI (1992) 179; Love. 'International AgreementObligations after the Soviet Union's Break-up: Current United States Practice and Its Consistency withInternational Law'. 13 VanJ.T.L. (1993) 413: MUllerson, 'New Developments In the Former USSR andYugoslavia', 33 Va. ]. Int'l h. (1993) 299; Williams, The Treaty Obligations of the Successor States of theFormer Soviet Union, Yugoslavia, and Chechoslovakia: Do They Continue In Force?'. 23 Dem. J.LLP.(1994) 1; Bunn and Rhinelander, The Arms Control Obligations of the Former Soviet Union'. 33 Va. /.Int'l L (1993) 323: Beato. 'Newly Independent and Separating States' Succession to TreatierConsiderations on the Hybrid Dependency of the Republics of the Former Soviet Union'. 9 Am.U./.LLP.(1994) 525.See, e.g.. Mullerson. supra note 7; Williams, supra note 7; Beato. supra note 7.See. e.g.. Malenovsky, 'Problemes Jurtdiques Lies a la Partition de la Tchecoslovaqule', 39 AFDI (1993)305: Williams, supra note 7.See. eg., Randehhofer, 'German Unification: Constitutional and International Implications', 13 Mich. J.inflL. (1991) 122; Oeter, 'German Unification and State Succession'. 5 Za<5RV(1991) 349. at 352-353;Tomuschat, 'A United Germany within the European Community'. CMLR (1990) 415; Jacque.'LTJnincation de l'Allemagne et la Communaute Europeenne", 94 RGDIP (1990) 997.The •Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties' of 1996described the FRY as tht 'predecessor state' whose treaty obligations remained unaffected by thesecession of the various Yugoslav republics. UN Doc. ST/LEG/8. paras. 297-298 (1996). The US.Germany and Guinea all objected to these paragraphs (UN Docs. S/1996/251; S/1996/263;S/1996/260) and an erratum was Issued.See SC Res. 777 (1992); GA Res. 47/1 (1992); Opinion of UN Legal Counsel UN Doc. A/47/485 (1992).See generally, Wood, 'Participation of Former Yugoslav States in the United Nations and In MultilateralTreaties', 1 Yearbook UN Law (1997).Case Concerning (he Application of the Convention on the Prevention and Punishment of the Crime of Genocide

(Bosnia Herzegovina v. Yugoslavia). ICJ Reports (1996) 3, at para. 17. The ICJ considered the FRY to be aparty to the Genocide Convention by reason of the fact that It had expressed Its intention to remain boundby the treaty In a declaration of 27 April 1992. What the Court conveniently overlooked, however, wasthat the rrsmrr of the declaration was the FRY'S claim to be the continuation of the former Yugoslavia.See dissenting opinion of Judge Kreca, supra note 13, para. 93. Also, Wood, supra, note 12.

The Problem of State Succession and the Identity oj States under International Law 145

questions. For example, a central assumption seems to have been that unification didnot involve the creation of an entirely new state.15 If otherwise, it might have beenconcluded that both the FRG and GDR had ceased to exist and that the new Germanywould have to apply afresh for membership in international organizations (includingthe UN and EC). But if the process was essentially one of the absorption of the GDR bythe FRG16 (a matter which presumably cannot be determined solely by reference to theparties themselves), questions arise as to the status of the agreements of the formerGDR. Was it the case that they were nullified by the process of union, or did theycontinue to apply on a territorial basis (as is laid down in Article 31 of the 1968Vienna Convention on the Law of Treaties17)?

The answers to such questions, and numerous other similar ones, cannot be foundin any simplistic process of doctrinal inquiry. Ultimately, in any case of statesuccession (which, for want of a better description, may be defined as a 'change insovereignty over territory'18) two sets of problems of an interrelated nature arise. First,and most visibly, are problems of substance — defining the existence, content, andscope of particular prescriptions. An example of such a problem arose recently in theGenocide Convention case where the International Court of Justice was faced with thequestion whether or not there existed a rule of automatic succession to conventions ofa humanitarian nature (and therefore to the Genocide Convention itself).19 Althoughthe ICJ left the matter open, Shahabuddeen, In his separate opinion, appeared tofavour such a view, relying, inter alia, upon a particular construction of the objec L andpurpose of the Convention.20 Another similar example might be drawn from the

Some traditional schools of thought maintained that when two or more states unite, the personality ofeach becomes extinct See, e.g., P. Flore. International Law Codified and Its Legal Sanction (5th ed.. 1918), at133.Article 1(1) of the Unification Treaty of 31 August 1990. 30 1LM (1991) 457, makes clear that theunification takes the form of accession under Article 23 of the FRG Basic Law of 1949. Article 23envisaged the application of the Basic Law to other German territory following an act of accession (this isto be contrasted with Article 146 which envisaged the unification of the two states to form a new statewith a new constitution). On 23 August 1990 UK Voliakammer decided by a two-thirds majority infavour of the accession of the GDR to the FRG based on Article 23 of the Basic Law.Article 31(1) provides that '[wjhen two or more States unite and so form one successor State, any treatyin force at the date of the succession of States In respect of any of them continues In force In respect of thesuccessor State ...'Definitions Include a "transfer of territory from one national community to another', O'ConneU. supranote 3, vol. I, at 3: the 'replacement of one State by another In the responsibility for internationalrelations of territory', Vienna Convention. 1978, Article 2(l)(a); the 'transfer of territory of one State toanother', Feilchenfek), supra note 3; 'la substitution d"un su(et a l'aatre dans un rapport juridtque donnequi demeure ldenttque'. Udlna, 'La Succession des Flats Quant aux Obligations International autre queles dettes PuWlques'. 44 RdC (1933). at 665.See, eg.. Kammmga. 'State Succession in Respect of Human Rights Treaties'. 7 EJU. (1996) 469;MOllerton. The Continuity and Succession of States by Reference to the Former USSR and Yugoslavia',42 /00(1993)473 .Shahabuddeen suggested that 'to effectuate Its ob)ect and purpose, the Convention would fall to beconstrued as Implying the eiuieatonof a unilateral undertaking by each party to the Convention to treat

146 EJIL 9 (1998). 142-162

recent Gabcicovo-Nagymaros case in which a central point of dispute was whetherthe agreement to construct a series of dams along the Danube was essentially in thenature of a treaty establishing a 'territorial regime' and therefore subject to automaticsuccession.21 The response of the Court to that question was In the affirmative — notonly did It find Article 12 of the 1978 Vienna Convention to be declaratory ofcustomary international law, it concluded that the agreement In question was indeedterritorial in nature despite the fact that it had never been executed and had beensubstantially repudiated by both parties.22 Whatever the position taken. It Is clear thatthese problems essentially involved assessing whether or not there was sufficientevidence to support the establishment of the norm of automatic succession inquestion, and whether its application could be justified in the case at hand. They were,in other words, concerned primarily with the existence and scope of particular rules ofgeneral international law.

The second set of problems essentially concern classification or taxonomy:determining what schemata of principles is to be employed. Such questions areinevitably closely related to the first set of problems, insofar as the development of aparticular rule will always depend to some extent upon how practice is classified, andwhat practice is considered analogous in the circumstances. Questions of taxonomyare distinct, however, in that they operate on a different level of generality. Here theconcern is not so much as to the content of individual norms, but the circumstances inwhich sets of interrelated norms should operate. In the context of Yugoslavia, forexample, the issue of 'continuity' was a problem of classification or taxonomy Insofaras it was of importance, not only for membership in international organizations,23 butalso as regards entitlement to assets and responsibility for debts, treaty obligations anddelicts. Such problems are more in the nature of 'structural' problems, the relevance ofwhich Is explicitly dependent upon particular theoretical assumptions: that we speakat all of 'annexation', 'cession', 'dismemberment', 'secession', or the like, is notbecause such categories are set in stone, nor indeed because they are terms of art, butbecause we accept them as useful and necessary descriptive categories. That they areeither useful or necessary, however, is a reflection of the particular theory ofsuccession adopted. For example. If the central consideration is one of 'mutualconsent', the classification would reflect a fundamental division between cases of'cession' and 'union' on the one hand, and cases of conquest and secession on the

successor States as continuing as from Independence any status which the predecessor State had as aparty to the Convention. The necessary consensual bond Is completed when the successor State decides toavail Itself of the undertaking by regarding ttsdf as a party to the treaty.'See Case Concerning the Gabdkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September1997.Ibid, para. 123.See, eg.. Hum. 'UN Membership of the "New" Yugoslavia: Continuity or Break?'. 86 AJIL (1992) 830.


other.24 By contrast. If the central consideration is rather the Issue of personality (as itis in most traditional works) the classification would distinguish categoricallybetween instances of secession and of dismemberment The point is that unless someagreement is reached as to the basis of the taxonomy employed, doctrine will alwaysbe at a loss to explain why a principle utilized in one circumstance should be applied inanother. Before considering such issues in greater detail, it is as well to consider brieflythe more immediate issues of substance and methodology.

2 Problems of Substance and MethodologyFor many authors, the central issue of substance is simply whether or not one of twoalternative theses should be applied: the 'universal succession' thesis or the 'cleanslate' (tabula rasa) thesis.25 The former approach is a derivative of the Roman lawconcept of inheritance in civil law, in which the heres (the appointed successors)acquire not merely a single res, but an aggregate of rights and liabilities called a iurisuniversitas.2f> Prichard explains that at the time of Justinian:

The universal successor ngqimwi the whole of the legal dothlng of the person to whom he

succeeds; steps, as It were. Into his shoes. He takes over his rights and liabilities of every kind;

his property {res singular) and iura in re allena, the debts and other obligations (such as rights

of action for damages for breach of contract) owing to him, and the debts and obligations

which he owes.27

It was in the work of Gentili,28 GrouW and Pufendorf30 that such concepts foundtheir way, in rudimentary form, into the body of international law, it being arguedthat the rights and duties of the predecessor passed ipso jure to a successor sovereign.Although such authors were generally concerned primarily with succession of theperson of the sovereign (I.e. what is now referred to as succession of governments),31

rather than succession of 'states', the universal succession thesis survived largely

For this view see Keith, supra note 3, at 1.See, e.g., Schaffer, •Succession to Treaties: South African Practice In light of Current Developments mInternational Law1, 30 1CLQ (1981) 593.This Is what distinguished the heir (the universal successor) from the legatee. H. Joiowlcx, Historical

Introduction to the Study of Roman law (1954). at 127.A. Prichard, Leage's Roman Private Law (3rd ed., 19 61). at 2 3 3. Jokrwicx points out that liability for delictwas sometimei IWITM-H 'personal' such that it became extinguished altogether. See Jolowicx. supra note26, at 128.Dejure Belli Ubri Tra (1612, translated by Rolfe. 1964) m, at ndi.Vt Jure BeOi ac Pads, H, tx. 10-12 . xiv. 1, 10. See generally. O'Connefl. supra note 3, voL I, at 9-10:PrttrhrntiM, supra note 3, see esp. ch. D.Dejure Naturae et Gentium Ubri Odo (1688, translated by CHdfather and OkUather, 1934) VEX at xll, ss.

1-9.See O'Connefl. supra note 3, voL I. at 1-2 (who arguably overstates the point).

148 EfIL 9 (1998), 142-162

intact until the late nineteenth century." By this stage it found its justification not somuch in thelstic dogma but in theories of 'popular continuity',3' 'organic substi-tution"4 and, improbably enough, 'autolimitation'.35

The 'clean slate' thesis, by contrast, appears to have emerged in the late nineteenthcentury as a result of the influence of voluntarist or imperative approaches to law (theWUlenstheorie).*6 It proceeds from an understanding of law as deriving from theexpression of sovereign will, and embodies thereby the view that legal relations areessentially personal. As a result, the process of transformation necessarily involves alegal hiatus when the sovereignty of one state comes to an end and another takes itsplace. In such a situation, there can be no 'transfer' of rights or obligations betweenthe old and the new state. Rather, the Incoming sovereign is free of all rights andobligations save those it assumes afresh.

In reality, neither of these two positions is wholly tenable, nor do they provide readysolutions to the range of problems that arise in the context of state succession. It Isclear to begin with that neither rule makes much sense with respect to cases of cessionof territory. In such cases the 'successor' (if that is how the cessee is to be addressed)will neither begin life with a clean slate, nor will it succeed to the full range of rightsand duties of the 'predecessor'. It is, therefore, only when a new state comes intoexistence, or when an old state ceases to exist that the debate is of significance. Eventhen, the two approaches tend to be insufficiently nuanced: to claim for instance, inthe context of dismemberment, that a rule of universal succession applies does little toaddress problems such as the distribution of property or debts among successor states.

Even when considered within the restricted context of treaties, the universalsuccession thesis demands too much. It argues for the maintenance of legal continuityin circumstances in which some alteration of legal relations is both inevitable andnecessary. It assumes that states may be burdened with obligations in a situationwhere specific consent is palpably absent, not because of any universal necessity butbecause of some inchoate systemic interest in legal continuity. The clean slate thesis,

See generally, O'Connell. 'State Succession and the Theory of the State1. Grot Soc. P. (1972) 23.E.g., Flore, supra note 15, at 134. This theory maintains that the state has two forms of personality: thepolitical and the social. In cases of state succession, only the political personality of the state (a fictitiousconcept) Is affected, leaving the social personality (the legal condition of the people) Intact. See,O'ConneU. supra note 3, voL L at 11.See, eg., M. Huber, Die StaaUnsuaxsskm (1898), at 18-19: J. Westlake, International Law (1904). at 61:Idem, The Nature and Extent of the TWe by Conquest'. 17LQR(1901) 392. According to this theory thesuccessor state (conceived as an organic Juridical entity) merely absorbs the factual situation broughtabout by the predecessor's legal commitments. In doing so, It takes over all the rights and duties of itspredecessor, save those which are essentially political. See generally, O'ConnelL supra note 32, at 40-45.See, eg., G. Jelllnek. ABcgemdn Staatslehre (1900), at 367-375. Despite employing the consensually-ortented' Wtiknsthcorit', Jdllnek found that states were bound, practically speaking, to accept tacitly thecontinuity of legal obligation. This, however, can dearly be regarded as a matter of 'novation', ratherthan 'succession'.

See, eg.. CavaglierL supra note 3: CavagUerL 'Regies Generales du Drolt de la Parx'. 26 RdC (1929) 311,at 364-376.


by contrast is not properly a thesis of succession at all.37 It denies the possibility of thepassing of rights and duties in virtue of an overarching requirement of consent But indenying the possibility of succession, it also appears to deny the possibility of law. Onlyby resort to some artificial notion of auto-limitation38 can a strict application of avoluntarist approach be reconciled with the existence of external legal obligation(bearing in mind that a looser notion of collective consent is apparently excluded).

It is also very clear that on an evidential level, state practice does little tosubstantiate e|fher position. In very few cases have newly emergent states discarded,in their entirety, all rights and duties that were formerly incumbent upon the previoussovereign. Even those states emerging from a process of decolonization tended toaccept a certain number of treaties entered into on their behalf by former colonialpowers." This i.c especially the case with respect to treaties establishing a territorialregime.40 On the other hand, it is equally rare to find examples where no alteration inthe legal position of a state or territory has occurred following a change insovereignty.41 It is generally accepted, for example, that certain 'personal treaties',such as treaties of friendship or alliance (and perhaps commercial treaties), are notsubject to automatic succession.'" Similarly, it is widely conceded that there is limited

Bello argues that the 'clean slate theory' Is a 'misnomer'. 'Reflections on Succession of States In the Lightof the Vienna Convention on Succession of States In Respect of Treaties 1978'. 23 GYIL (1978) 296. at309-310.Cf. Jefllnek's concept of 'SelbstverpflkhUingdchre', Idem, Die Rcchtlkhe Natur der Staatenvertrtge (1880). atl i tIt Is clear that very few states have. In practice, refused to apply any of the predecessor states' treaties (theone mnln exception bdng Israel). See International Law Association, ITif Effect of Independence on Treaties(1965). at 2-3; O'Connell. 'Independence and Succession to Treaties', 38 BYbIL (1962) 84; Keith.•Succession to Bilateral Treaties by Seceding States', 61 A]H (1967) 521. O'Connell argues that theevidence cited by the ILC to support its 'dean slate' thesis Is extremely partial. He suggests that 1) itarbitrarily excluded from analysis cases of separation (such as the separation of Norway from Sweden) Inwhich the clean slate analysis was not applied; 11) many examples given were from the nineteenthcentury (such as the Independence of Latin American republics) when there was only a restrictedcategory of treaties, many of which were merely treaties of political alliance: HI) In practice, through theuse of devolution agreements, a good many treaties remained In force for the successor states. O'ConndL•Reflections on the State Succession Convention'. 39 ZaSRV (1979) 725, at 729-733.The special nature of such 'territorial' treaties wa« first recogntied by de Vattel. who distinguishedbetween 'real' treaties and 'personal' treaties. The former he considered to be 'those contracts by which aright Is once for all acquired. Independently of any subsequent acts of either party'. E. de Vattel, The Low ofNations, vol. II (Trans. Chltty. 1863), c. xiL 204. These have become known as 'dispositive treaties' or'international servitudes' and are thought to create rights In land and to survive changes in sovereignty.O'Connell, supra note 3, vol. n. at 12-2 3; A. McNalr. The Low of Treaties (19 61), at 2 56. Such treaties maybe universal or particular, and Include treaties of cession, boundary treaties, peace treaties, treaties ofneutrality and treaties providing for rights of way over territory. The notion of dispositive treaties is givenspecific recognition m the Vienna Convention 1978, Articles 11 and 12. Cf. also. Case Concerning theGabdkovo-Nagyrnaros Project (Hungary/Slovakia). Judgment of 25 September 1997, para. 123.This might be possible In the case that the least 'disruptive' form of succession occurs, namely, cession ofterritory. In cases in which succession Involves the emergence of a wholly new state, it is unlikely thatpurely political treaties or delicts of the predecessor state will continue.See, eg., R. Jennings and A. Watts (eds.). Oppenhelms International Law (9th ed.. 1992). at 212.

150 EJJL 9 (1998), 142-162

succession to delicts (unliquidated debts).4' The argument, therefore (if indeed there isone at all), is only as to which approach is more accurate in a very general sense —one which supports a notion of succession or one which emphasizes, instead, thenecessity of consent?

The approach adopted for the debate above is likely to be informed primarily by thebroad approach taken as to the nature of international law. One of the centraldifficulties underlying the notion of succession has been the perceived absence ininternational law of a set of systemic norms that governs all dimensions of thecreation, disappearance or mutation of the legal order of the state.44 This isrepresented, in a weak sense, by the perception that international law is not as yetsufficiently developed to guarantee the transmission of rights and obligations in caseof changes in the condition of states.45 In a stronger sense, however, it manifests Itselfin a recognition that the essentially consensual nature of international law, and thebilateral nature of international legal obligation, pose almost insuperable obstacles inthe way of the development of a law of succession. From one perspective, to consider asuccessor state to be party to a treaty ratified by the predecessor state is to assume thatthose obligations could be imposed on what is, to all intents and purposes, a thirdparty, without its consent. If the successor state is, in reality, a legally distinct person,the treaties of the predecessor state must be considered essentially res inter alios acta.*6

Nor is the issue merely one of the rights and duties of the successor state: if someelement of succession is accepted, the successor will necessarily assume certain rightsand duties vis-d-vis other states. Preservation of legal continuity in such circum-stances can only be Justified by one of two arguments (assuming the absence of an actof novation). Either continuity is ensured systemically in virtue of a positive rule ofsuccession, to which all states (new and old) are assumed to have consented, or it isensured through the continuing identity of the subject (as perhaps might be expressedin some notion of'popular continuity') which in essence denies the fact of succession.

Considering the first possibility, there are essentially three problems that attend tothe development of a customary law of state succession. The first is that state practicewill rarely provide a substantive explanation for the fact of legal continuity. Theassumption of rights and duties on the part of a successor state may variably beinterpreted either as an explicit recognition of the operation of a norm of succession oras an assumption it novo of certain international rights and duties (through an act ofnovation). In both cases, evidence of consent may be provided, but in the absence of anexpress statement as to its import it cannot necessarily be construed as a recognition

See, eg., Robert E. Brown case, AX)., voL 2, no. 35.This approach has traditionally been expressed In the form of the 'state as fact' argument See, e.g.,Cavagltert supra note 36, at 321. 340-341.Such a view Is Implicit In the contention that international law. as a 'primitive' system of law. does notpossess a dear set of secondary rules which include. Inter alia, rules of change. See generally, HX^A. Hart71K Concept of Law (1961), at 209.Castren. atpra note 2, at 754.


of succession in law.47 Even in the context of treaties, where depositaries will usuallyregister the fact of succession, accession or the like, there is frequently doubt as towhether succession was considered to occur automatically or by reason of the fact ofnotification.

Secondly, unlike many other areas of law, the law of state succession benefits littlefrom codification.48 hi its conventional form, the law of state succession is ultimatelyself-regarding — the question whether a new state is bound by particularconventional norms of succession is contingent upon a recognition that it has. indeed,succeeded to those norms. This point was not lost on the ILC which, when draftingarticles on state succession to treaties, admitted that the adoption and generalratification of a relevant treaty would itself do little to resolve legal difficulties:

Since a succession of States In most cases brings Into being a new State, a convention on the

law of succession In respect of treaties would ex hypothesi not be binding on the successor

State unless and until it took steps to become a party to that convention; and even then the

convention would not be binding upon it in respect of any act or fact which took place before

the date on which it became a party. Nor would other States be bound by the convention in

relation to the new State until the latter had become a party.4'

The particular aim of the ILC, therefore, was not so much to achieve results byconventional means, but rather to begin a process of codification and clarification inthe hope that the norms may eventually take on the character and shape of norms ofcustomary international law.50 Such a transformation, however, is far from simple.Certainly, as the ICJ noted, a 'widespread and representative participation in theconvention might suffice' but only 'provided it included that of States whose interestswere specifically affected'.51 The problem here is that, even assuming widespreadratification of the Vienna Conventions, in most cases those states specifically affectedwill, ex hypothesi, not have ratified the Convention nor will there necessarily be anyevidence of 'extensive' and 'uniform' practice.

This leads to the third point, namely, that it is assumed that newly emergent stateswould be automatically bound by the terms of a general international law ofsuccession. The traditional justification for this lies in the supposition that, in seekingentry into the international legal community, new states impliedly accept the terms ofexisting general international law.52 Leaving aside the question-begging nature ofsuch resort to 'tacit' consent (it clearly not being the same as consent to the creation ofa legal norm), it may be argued that there is a world of difference between the

47 O'ConnelL accepting that practice was by no means coherent, remarked that an appreciation of the lawof state succession was 'ultimately one of emphasis'. O'ConnelL supra note 3, vol. I, at 33.

** O'fVinn^TI TTffmnrtm tfinf *Stft*f P"f^^ff^OT1 \fi fl ffl*h)fy* altPflfthfT npST^pd tO thp pTOCfSMy of CpHlflrnrtnn,

let alone of progressive development.1 O'ConnelL 'Reflections', supra, note 39, at 726.•" 1974. IL p t L at 170. para. 62. This point Is further bolstered by the principle of non-retroacovity

embodied in Arttde 7.50 Yearbook ILC (1981 — H. part il), at 9. See Bdto. supra note 37, at 301-302 ." North Sea GmUnertalSheycaseMq Reports (1969), at 3. para. 73.u See, eg . , Westiake. International law. supra note 34. at 49; HaH International Law (4th ed. 1895), at 44: L.

Oppenhehn. International Law: A Treatise (2nd ed.. 1910), at 18.

152 EJ1L 9 (1998), 142-162

acceptance of obligations where there is evidence of an existing general practice and,on the other hand, the acceptance of rules whose application is directed specificallyand exclusively to new states as they emerge onto the international plane. The point isthat new states do not enter into a legal community in which the rules of successiongovern the relations between states on a day-to-day basis, but are rather subjected tothe application of a particular, conditional set of rules that lay down the legalcircumstances that are to accompany their 'birth'. This is not to say that the creationof rules of this type is an impossibility, but rather that their justification cannot bebased upon the traditional processes of tacit consent, acquiescence or estoppel.

3 Problems of Analytical StructureWhilst methodological issues are certainly of importance in the context of statesuccession, it is in the lack of structural clarity and the mutability of classification thatmost problems arise. As O'Connell remarked, '[i]t is significant that, in the history ofState succession, controversy has developed not so much around the questionwhether such and such a principle exists as over application of such a principle'.5'Although this is not a problem specific to the question of succession, particularlyinsofar as all customary international law is dependent upon operative taxonomy, it isnevertheless particularly evident in this area.

In traditional works, a distinction is usually made between forms of successiondetermined by reference to the nature of the change taking place and its effect on thepersonality of the predecessor state. It is common, for example, to find a differentiationbetween universal succession and partial succession.54 In the former case, thepredecessor state Is said to cease to exist and there is thus greater pressure to ensuresuccession to international rights and duties. In the latter case, succession will be lessmaximal Insofar as the predecessor state remains prima facie responsible for ^Jinternational rights and duties. Thus the law of state succession has, for some time,been explicitly contingent upon the 'personality' of the state, and specifically its'identity' or 'continuity', which remained the point of differentiation between theoperation of two distinct legal regimes. Identity, therefore, serves to differentiatebetween a case of cession (or secession)55 and one of dismemberment,"1 between a caseof absorption (or annexation) and one of union,57 and between the birth of a new stateand Its resurrection.58 In each case, the defining consideration is whether or not thestate concerned retains its legal identity; in other words, whether it continues its

" O'Connell, supra note 3, voL I, at 29.54 See, e.g.. Ftore. supra note 15; Udokang, supra note 3; Jennings and Watts, supra note 42, at 209." Sec Yearbook ILC (1974 —U), at 263-266.** E.g. Austria-Hungary In 1918, see K. Marek. Identity and Continuity of Stales In Public International Law

(1954), at 205-210; Federation of Mali, see Cohen, 'Legal Problems Arising from the Dissolution of theMall Federation', 36 BYT>IL(1960) 375.

57 Eg. Yugoslavia 1918. see. Marek. supra note 56. at 237-262. UAR (1958). Cotran. •Some Legal Aspectsof the Formation of the United Arab Republic and the United Arab States', 8 ICLQ(1959) 346.

" Kum. 'Identity of States under International Law'. 49 AJIL (1955) 68.

The Problem of State Succession and the Identity of States under International Law 153

personality as a state. Such differentiations are thought to be particularly importantbecause international law presumes that all decisions relating to the continuation orotherwise of a state's rights and duties, assets and liabilities, will be dependent uponthe universal characterization adopted. This, in turn, flows from the proposition thatthe possession of international rights and duties inheres in an entity with appropriatelegal personality. Identity, therefore, provides the key to determining the proper set ofnorms that are to be applied in a given case.

In practice, however, it has become very clear that such distinctions raise morequestions than they answer. In most cases, it is extremely difficult to distinguishproperly between the two classes of case, as. for instance, between a case of multiplesuccession and one of dismemberment, or between a case of absorption and one ofunion. This was certainly the case in the past (as with the dissolution of the DualMonarchy of Austria-Hungary in 1919, and the unification of the Kingdoms of Italy)and continues to be a live issue today (as with the argument over continuity of theUSSR and Yugoslavia, and the absorption/union of Germany). The difficulty is thatfactually speaking, the processes are similar: in the case of Yugoslavia, the processcould equally well be viewed as one of multiple secession or as one of dismembermentBoth situations involve the non-consensual disengagement of a number of territorialunits from the former parent state. Without a clear point of differentiation, problemswill inevitably arise as to the proper characterization of particular cases and thedetermination of what analogies are appropriate in the circumstances.

4 O'Connell and the Elimination of PersonalitySuch problems of differentiation were clearly perceived by O'Connell, who sought toeliminate in large part any consideration of the issue of 'personality' from the law ofstate succession. His central thesis was that legal doctrine on succession had beenderailed by the predominance of Hegelian conceptions of the state, which, from thetime of Bluntschli onwards, understood the question of succession in terms of theidentity (or personality) of the parties themselves. He argues that when Hall madepersonality the universal touchstone of succession, jurists came to think that treatieswere generally annulled by change of sovereignty. Such an approach, he thoughtstood in distinction from the earlier, and better, approach, namely to analyse the effectof change upon the treaty concerned, rather than the continuity or otherwise of theparties.59 He comments that '[t]he law of State succession in the mid-twentiethcentury has reached a position of crisis, because evident moral and sociologicalpressures emphasise the need for continuity and the avoidance of disruption, whiletheory remains enmeshed In the nineteenth-century conception of sovereign will'.60

The point was that, although 'a conceptual distinction must be made betweensuccession of States and continuity of States', the problems of succession differ fromthose of continuity 'only to the extent that the legal regime governing the

" O'Connell. supra note 39. at 734.*° O'ConneU. supra note 3. voL L at 34.

154 E/IL 9 (1998), 142-162

consequences of a change of sovereignty differs from that governing the consequencesof a change of government'.61 He took the view that since the boundary betweenchange of sovereignty and change of government 'wears thin to the point ofdisappearance','2 the question may be asked whether 'there is any utility inmaintaining a rigid distinction between the legal consequences of the one and theother situation'.65 He therefore advocated, and indeed foresaw, a return to (what heconsidered to be) the eighteenth-century position in which all changes to thecondition of the state would fall somewhere along a continuum in terms of their effecton a state's international rights and obligations. The presumption, however, would beone of continuity of rights and obligations which 'only concrete analysis may rebut':

If there is any rubric, therefore, to which one could resort as a touchstone for the solution ofall problems of political change over territory it might be this: that the consequences of suchchange should be measured according to the degree of political, economic and socialdisruption which occurs."

The point being made was that merely because a case may be classified as one ofdismemberment rather than of secession, this should have little relevance for the lawof succession. In each case, certain changes in the rights and duties of the statesconcerned may be necessitated, but only in virtue of the extent of change and its effectupon the instruments concerned and not by reason of whether or not the state isdeemed to continue. O'Connell's approach in this regard is undoubtedly radical, andfor that reason his tentative phraseology is entirely apposite. His suggestion istantamount to a disposal of all questions of 'succession' understood as an 'inheritance'or 'assumption' of rights and obligations by reference, not to the normal bivalentdivision between succession and non-succession but to the integrity of the legalrelations themselves, hi the context of treaties, then, the matter of succession could bedisposed of within the general category of rebus sic stantibus, as a technique to copewith situations of 'fundamentally changed circumstances'.65

" Ibid, at 5. He argues that 'With the abstraction of the concept of sovereignty, however, a conceptualchasm was opened between change of sovereignty and change of government in the one Instance aproblem of substitution in the possession of rights and obligations was raised: in the other, continuity ofthese rights and obligations was presumed in virtue of continuity in the personality of the possessor.' Ibid,at 5-6.

u O'Connell argues that "The concept of "personality" with Its Hegelian overtones, seems to have misledthe theorists. Modem Jurisprudence has assisted us in recognixing that the word "personality" does notstand for something, is not descriptive of anything, and cannot be substituted for by a synonym: 11 Is notIn fact, a reflection of some prototype sitting on a cloud somewhere, but merely a shorthand expressionindicating the faculties of legal action.' See O'Connell, 'Independence and Problems of State Succession',mW. O'Brien (ed.). The New Nations In International law and Diplomacy (1965) 7. at 11.

" D. O'Connell, The Law of State Succession (1956). at 6.M O'Connell, supra note 3. voL I, at v-vL" This proposition was first developed by R Wheaton.EfementS(^Irtemat/onfliLflw(8thed., 1866).at275.

O'Coonell expresses It thus: The real question is the extent to which a treaty loses its effectiveness in therhpngifl rttimtinn If H hf [Hi-mnnrH that hrntVp |n prinripl^ yunrtgf thy rhangf nf gnrniT)n)fT|t a Wider

spectrum of treaties Is likely to be excluded from lapse on frustration than if the contrary be presumed:and the presumption might very well vary according to whether the case is characterised as one ofannexation, cession, federation, secession or independence. When the contracting State totally


Whilst O'Connell was entirely right in his assessment of the abstracted artificialityof the notion of 'sovereignty' or 'the state' in international law and, as we shall see,was also right in thinking that 'personality' as currently understood is problematic asa determining criterion for succession, it is doubted whether his advocated return tothe practice of the eighteenth century is either possible or desirable.6* As an Initialpoint, it is clear that O'Connell did not found his argument exclusively, or evenmainly, upon state practice. He was very much aware that practice by its nature isopen to a wide variety of constructions. For O'Connell, the point was that suchpractice should be rendered coherent by means of the force of 'reason' or 'Juristiclogic'. 'A rational approach', he thought, 'will thrust the emphasis on positivemanifestation of the need for order and stability to be discovered in regular solutionsdevised by states in their day-to-day practice'.67 Such an avowed resort to rationalismclearly exposes the precarious nature of his thesis: only if one treasures legalcontinuity at the expense of allowing new states to determine their own legal futuremay one follow O'Connell on this point In its barest form, it is far from being acompelling or overwhelming argument.

Leaving aside the unstable grounding of his thesis, there are a number of othermore practical reasons why O'Connell's approach is to be questioned. First, even if hisargument were to be given due deference, there would still remain questions thatcould not be resolved. For example, the issue of personality which underlies thedifferentiation between secession and dismemberment (and between absorption andunion) would remain ultimately crucial as regards membership in internationalorganizations,6* and possibly also as regards the continuance of political treaties69 andthe attribution of delictual responsibility.70

O'Connell avoids the first issue by arguing that membership in internationalorganizations is a distinct, and particular, issue. To his mind, membership in theseorganizations is not strictly a matter of general international law — it is subject to the

disappears as an administrative entity, it Is likely that a wide range of treaties would cease to beperformable In the changed circumstances, and the presumption might be against treaty survival. Butwhen the change of sovereignty modifies the circumstances of performance only slightly, if at all, thepresumption will be reversed.' O'Connell. supra note 3. vol. I, at 3.Crawford points out that although O'Connell objected to the traditional classification, he neverthelessretained that structure In his own work. See Crawford. The Contribution of Professor DJ>. O'Connell tothe Discipline of International Law'. 51 BYbIL (1980) 2.

Ibid,The case of Germany has been presented as one of absorption, which Itself gives rise to few problemsregarding UN membership. Oeter, supra note 10. at 368. Ct Article 11 of the Unification Treaty.

Political treaties were traditionally thought to be 'personal' rather than 'dispositive'. They were. In otherwords, dependent upon the continued existence of the parties concerned. See. O'Connell. supra note 63,at 15.Article 39 of the 1978 Convention provides that '[t]he provisions of the present Convention shall notprejudge any question that may arise In regard to the effects of a succession of States in respect of a treatyfrom the international responsibility of a State ...'.

156 E/ZL 9 (1998). 142-162

internal rules of the particular organization and therefore conditional upon theacceptance of certain constitutional obligations. Even if this argument is accepted,distinguishing between forms of state practice in this way tends to be rather too easy.Leaving aside the willingness of a state to comply with the rules of the organizationconcerned, it cannot necessarily be assumed that decision-making within organiza-tions is made by reference to a discrete set of concepts and principles that are notapplicable outside that context.71 It is widely acknowledged, for example, that theacquisition of UN membership itself may be a central means by which the generalpersonality of a state is established.72 Hence, it was not without some significance thatRussia took over the mantle of the USSR as regards its seat in the UN and, inparticular, its membership within the UN Security Council.

Secondly, so-called 'political treaties' which regulate the political and economicstatus of the state73 have long been regarded as terminating in case of change ofsovereignty. It is reasoned that alliances, treaties of friendship, treaties forming apolitical union, and treaties establishing a system of economic Integration arelndissolubly linked to the political structure of the state concerned and must thereforebe seen to terminate on the extinction of that state. Reliance upon the notion of rebussic stantibus In this context is problematic, particularly insofar as the ICJ has stressedthat resort to that principle must be limited to circumstances which 'resulted in aradical transformation of the extent of the obligations still to be performed' and thatthe 'change must have increased the burden of the obligations to be executed to theextent of rendering the performance something essentially different from thatoriginally undertaken'.74 A case in which one sovereign has absorbed another (orentered into a union with another) will not necessarily 'increase the burden of theobligations' In the case of a treaty of friendship. Termination In such circumstancesmust in reality turn upon a change In the identity of the state concerned. It might wellbe argued that the notion of rebus sic stantibus needs to be expanded to account forsuch alterations in the form of states, but to do so without using 'Identity' or'continuity' as a reference point would place great pressure upon what Is Intended tobe a limited principle.

Thirdly, In discarding the notion of personality as a determinant of rules of'succession', O'Connell Is forced to base his assertion of legal continuity on somethingother than state sovereignty. In practice, he subordinates entirely the question ofconsent, placing emphasis instead upon the sovereignty of the international legalorder. He asserts in that vein that '[sovereignty connotes nothing more than the

71 Cf. Article 4 of the 1978 Convention which provides that '[t]he present Convention applies to the effectsof a succession of States in respect of (a) any treaty which is the constituent instrument of aninternational organization without prejudice to any other relevant rules of the organization ...'.

72 In the case of Macedonia, for example, the UK raw its endorsement of FYROWs membership as being anact of recognition. Statement of Douglas Hogg, House of Commons. Dtb.. voL 223. WA. coL 241.22 April199 3. See generally. Craven, 'What's in a Name: The Former Yugoslav Republic of Macedonia and Issuesof Statehood'. AusLYearbook Init L (1995).

" See Jennings and Watts, supra note 42. at 212.74 Fisheries Jurisdiction case, i q Reports (1973) 3. at 21.

The Problem of Stale Succession and the Identity of States under International Law 1 5 7

supreme legal competence within a defined region' and that such a competence 'isrelative only'.75 As the extent and nature of sovereignty is apparently determinedsystemically by the international legal order, it may be concluded that 'the impositionupon the successor State by international law of duties with respect to such territory isnot incompatible with the extension of its sovereign jurisdiction'.76 While it is clearthat approaching the question of succession from the point of view of 'consent' (orwhat O'Connell would refer to as 'will') raises more questions than it resolves. It isdoubtful whether discarding it entirely as a matter of concern purely for reasons oftheoretical convenience is necessarily appropriate. One might question, for example,why consent should continue to be a central consideration in treaty-making or In thecreation of customary International law if it Is so easily discarded in times of change.Whatever general rules of succession develop, the continued emphasis upon someform of consent as the basis of obligation in international law means that it is difficultto dispose of the argument that a new state should not be subject to customary, letalone conventional, obligations to which it has not voluntarily agreed. This Isparticularly the case with respect to states that have emerged from colonialism orsome other condition of dependency. By contrast, in a case of continuity, there isalways at least prima facie continuity of rights and duties, subject only to changes thatare necessitated by the transfer of territory or by the principle of rebus sic stantibus.77

That the law of state succession does not appear capable of setting aside, ordiscarding, all questions of personality is particularly evident from an analysis of theILC's work In that regard. The ILC, apparently taking its cue from O'Connell (notwithout some Irony it might be noted78) and wishing to avoid the enunciation of a'theory' of state succession,79 sought to assimilate several of the traditional categoriesof practice (that were otherwise distinguishable by reference to the issue of

O'Connell. supra note 3. vol. I, at 26.told.

In this context It Is necessary to address O'Connell's characterization of succession as a matter ofsuccession to a factual situation. If this view were to be taken, it would have to be admitted that thequestion of personality has little consequence for the attribution of rights and duties; the differencebetween a case of secession and one of dismemberment would not be determined by the continuity orotherwise of the state, but by the extent of change. Certainly. O'ConneU's approach on this questionavoids the problems associated with relying upon legal actions, such as the idea that rights and duties canbe transferred to an entity that has yet to acquire personality, or the idea that successor states are in somerespect 'parties' to treaties which they have neither signed nor ratified. But he cannot fully explain whythe simple fact of transference of territory from the authority of one sovereign state to another shouldhave any necessary legal consequences except by reference to existing principles of international law.Facts, In themselves, do not create law and it Is only by Invocation of a relevant prescription that certainlegal consequences are attributed to material events. In essence, his approach represents an extension ofthe 'state as fact' theory and suffers from the attendant problems of explaining the necessarytransformation of fact Into law.

O'ConneU was fiercely critical of the ILCs w o r t see O'Connell. 'Reflections', supra note 39.See. eg . . First Report of Sir Humphrey WaMock, Special Rapporteur. UN Doc A/CN.4/202. YBRC.1968, vol. n. 87. at 89, para. 10, where It was commented that If a theory of state succession wereadopted 'it would almost certainly be found to be a strait-jacket Into which the actual practice of States. . .could not be forced without Inadmissible distortions either of the practice or the theory'.

158 EJTL 9 (1998), 142-162

personality). Thus, in the 19 78 Convention, it avoided making a distinction between acase of absorption and one of union (Articles 31-33) and, similarly, between a case ofseparation and one of dismemberment (Articles 34-35). In so doing, it was forced toignore relevant state practice80 and produced several rules that were barely Justifiable.First as the experience of German unification shows, the Article 31 rule — namelythat treaties of the predecessor state should be maintained but only in relation to itsformer territory — appears to deny the realities of absorption, where the objective isarguably to create and maintain a single constitutional and administrative struc-ture.81 Secondly, the Article 34 rule, by which the treaties applicable to the entireterritory of the predecessor state continue in force in respect of each and everysuccessor state, appears hard to justify when no rule of succession applies in cases ofcession of territory.82 It is clear in this case that the point of distinction is primarily oneof personality; in the case of secession a new entity comes into being, but not so in thecase of cession. But if personality is the relevant distinguishing point here, one mightask why it is not relevant otherwise.

5 Reinvention of the Subject: Personality and the Identity ofStatesEven if the elimination of 'personality' or 'identity' from the law of state successioncannot be supported, there does remain, nevertheless, a need to re-evaluate suchconcepts in light of their apparent indeterminacy. Indeed, it is considered that at thispoint legal doctrine has been fundamentally misleading. The initial assumption ofmost writers has been that the matter of identity is primarily one analogous to that ofstatehood or personality. As Kunz remarked, '[t]he problem of identity of states is notthe antithesis of the problem of state succession but of the problem of the extinction ofStates'.83 The result is that it is common to find pronouncements to the effect thatinternational law has no real understanding of when a state ceases to exist.84 Thepoint being made is not so much that the existence of the state is merely apresupposition of the law, an argument associated with early voluntarists,85 but

"' Eg.. In relation to Article 31, it ignored the fact that on the admission of Texas to the USA in 1845, the'moving treaty frontiers' rule was applied (Texas' treaties lapsing with its absorption). It also drewexclusively upon the cases of the UAR and Tanzania, which, it admitted were peculiar. Commentary,1974, at 258, para. 24.

" SeeOeter, supra note 10, at 355." CommenUoy. Article 14. at 208, para. 2. It is notable that the IQ could have relied upon Article 34 to

decisive effect In both the Genoddt Convention case (supra note 13) and in the Gabdkovo-Nagymaros Projectcase {supra note 21). but deliberately chose to rely upon other arguments (In the latter case. Article 12 ofthe 1978 Convention).

" J. Kunx. The Changing Law of Nations (1964). at 288. Kunx is right that the problem of Identity is not theantithesis of the problem of succession. However, even In cases of continuity. Issues of succession mightarise.

" Marek. supra note 56, at 7." See. eg . . Cavaglieri. supra note 36. at 340.

The Problem of Stale Succession and the Identity of States under International Law 159

rather that the conditions for the extinction of the state are particular, and morecomplex.

When examined closely, however, this argument becomes difficult to comprehend.Assuming that international law does possess certain criteria that condition the'existence' of the state, or at least its participation in the legal community, thenlogically those criteria should also apply as regards its 'legal demise'. Thus, the generalcriteria for statehood (which for purposes of argument are taken to be governmentterritory, population and independence86) should presumably govern not merely thelegal 'creation' of states, but also their 'extinction'. So. where the territory of a statebecomes submerged by the sea, or where the population of a state evacuates en masseto other territories, or where it falls into a state of extended anarchy, it should bepossible to conclude that the state has ceased to exist.87

What has to be understood, however, is that the traditional criteria for statehoodare both abstract and exclusionary. They are abstract in the sense that they do notrequire the possession of a particular territorial locus, the maintenance of a particularcomposition of population or, indeed, a particular form of government Thus, it iscommonly accepted that the continuity of the state is not affected by changes ingovernment (even revolutionary changes)83 nor by the cession of territory.89 Therequirements of statehood are also exclusionary in the sense that they operate asthreshold evaluations primarily intended to exclude from international discoursethose entities that are not for example, fully independent. That they are not operatedso clearly in the context of putative extinction is primarily a result of the fact thatstates are not in the habit of withdrawing recognition from entities once established.90

This, in turn, is primarily due to the fact that states are not willing to jeopardize legalrelations with an entity where there is clearly no successor state. Thus, it is notsurprising that states did not withdraw recognition from the state of Somalia duringthe period of dlsrule, nor from Albania despite the apparent total absence ofgovernment The fact that there may be a presumption of continuity in suchcircumstances, however, does not detract from the point that the essential conditionsfor extinction are logically the same as those for the recognition of new states.

See J. Crawford. The Oration of States In International Law (19 79). The Montevideo Convention defines (InArticle 1) the qualifications for statehood as being the possession of '(a) a permanent population: (b) adefined territory; (c) government and (d) capacity to enter Into relations with other States'. 165UVTS19.Independence is more difficult insofar as it is a relational concept Loss of independence assumes a certainIdentity of the subject which cannot easily be presumed in the case of corporate entities.Protocol of London. 19 February 183 l.CFr. Martens. Nouvtau recuell dt trailes et autres actes rcktlfs auxrapports de droll, voL 10. at 197.See. e.g« Hall supra note 52. at 22.See H. Lauterpacht Recognition in International Law (1947). at 349-352.

160 E/IL 9 (1998). 142-162

Perhaps this point may be best illustrated with respect to the dismemberment ofYugoslavia. In that case, the disengagement from the federation of Slovenia, Croatia,Bosnia-Herzegovina and Macedonia, left in place the remaining republics of Serbiaand Montenegro.91 The approach of the Badinter Commission,92 and also apparentlythe UN,93 was to argue that the SFRY had ceased to exist as a state in virtue of the factof dismemberment. But to accept that would be to say that Yugoslavia had ceased toexist as a state, despite the fact that it continued to possess, in the form of the FRY. allthe material requirements for existence. The truth is that at no stage did the FRY lose,in its entirety, independence, territory, population or government: it continued topossess all these attributes, albeit in a reduced form. It is also interesting to note, inthat regard, that no states actually withdrew recognition from Yugoslavia, orsubsequently the FRY, at any stage.

What this suggests is that a distinction needs to be drawn between transformationsthat result in the extinction of the state, strictly understood, and those that resultmerely in a change in identity. In the case of Yugoslavia, what is at issue is not somuch whether the FRY is a state, but whether it is the same as, or different from, theSFRY. The point of difference may be described as follows: whereas the concepts ofstatehood and personality proceed on the understanding that states have certainattributes or qualities in common and that they are thereby attributed with, orinherently enjoy, certain competencies under international law, the concept ofidentity, by contrast, is predicated upon a notion of difference. 'Identity' assumes thatindividual states, whilst being members of a particular class of social or legal entities,also possess certain distinguishing features that differentiate one from another.Identity, therefore, presumes personality but is concerned with what is personal orexceptional in the nature of the subject. This can never be provided by reference to thetraditional requirements of statehood.

Once the issue of 'personality' (qua competence) is placed to one side it becomesclear that in many cases the issue is not simply one of determining the existence of thestate, but rather the degree of identity and extent of continuity. What this means isthat emphasis should not be so much upon the existence of 'external' rules ofsuccession that allow for the 'transference' of rights and duties from one subject toanother, but rather upon determining the extent to which legal continuity shouldfollow from elements of material (social, cultural or political) identity. Whilst it isbeyond the scope of this paper to analyse the consequences of this Insight in depth, itmay be noted that there are two general consequences of such an approach. First, ifthe distinguishing feature in many cases of succession is recognized as being one of'identity', it avoids, or at least minimizes, the methodological problems raised by theapparent lack of 'consent' on the part of successor states as well as by the idea that

" See generally. Weller, The International Response to the Dissolution of the Socialist Federal Republic ofYugoslavia'. 86 A/ft (1992) 569.

" See Opinion No. 1, 31 UM (1992) 1494. at 1495. See generally Craven. The European CommunityArbitration Commission on Yugoslavia1 66 BYbIL (1995) 333. at 357-375.

" See Blum, supra note 23.


agreements are essentially res inter alios acta. In such cases, the 'successor state' (forwant of a better description) may be assimilated in some degree to the 'identity' of thepredecessor and cannot thereby claim the entitlement to be entirely free fromobligations undertaken by the latter. Rights and obligations that in some sense definethe identity of the subject of succession, should presumptively remain untouched byevents. This may result in supplementing the traditional category of 'dispositive'treaties which continue in all circumstances with a category of humanitarian treatiesthat attach to the 'person' of the subject. It may also justify invoking the principle ofself-determination as a reason for denying the imposition of obligations that werepreviously assumed by non-democratic (or previously colonial) regimes.

Secondly, recognizing that identity is the central issue in the law of successionmeans that a far more gradated approach needs to be taken whilst dealing withquestions of succession. No longer is it simply a case of determining the applicability ofdifferent rules according to a simple bifurcation between continuity and discontinuity,but rather of justifying changes to legal relations by reference to degrees of changes inthe identity of the subject. There is a return, here, in spirit (but not necessarily in form)to the nineteenth-century German Historical School, whose conception of customarylaw as the will of the people provided the extant justification for the consensualorientation of International law.94 There is also, ironically enough, a return to therelativity of O'Connell's conception of succession, in which he recognized thatproblems would not be resolved by any simplistic mechanism that either discardedentirely the need for continuity or denied the need for legal change. The point ofdifference, however, arises In the justificatory discourse — it Is not simply a question ofintroducing a presumption of succession or of emphasizing the integrity of legalrelations, but of examining the extent to which a community ought to be burdenedwith historic obligations having reference to the nature of the obligation in question,and the circumstances in which it was assumed.

6 ConclusionIt has been one of the objectives of this paper'to develop thinking as to the substance,methodology and structure of the law of state succession in such a way as to point tothe need for some reorientatlon. It has been pointed out that the validity or influenceof any rule, principle or doctrinal approach in relation to state succession will rarely bedetermined by reference to state practice alone. Even without adopting a stringentlyconsensual approach to legal obligation, established practice will only provide a verymarginal or Insubstantial argument in favour of either legal continuity or disconti-nuity. Not only is practice sharply divergent, but there are the added problems ofdiscerning intent and of binding what are understood to be third parties.

The greater Influence In any approach to state succession, it has been argued, is thetheoretical structure adopted. The problem with traditional approaches, as was

94 See A. Caity. The Decay of International Law? (1986). at 25-42.

162 EJR 9 (1998), 142-162

clearly perceived by O'Connell, was the fact that a great deal was left to depend uponwhat was essentially a matter of political technique or argument He thereforeadvocated, without too much conviction, that the issue of personality should beentirely discarded from the law of state succession. It has been argued that such anapproach is not entirely without its problems, there being a number of instances inwhich the issue of personality apparently remains essential. What is suggested,however, is that the problem largely lies in the traditional assimilation of the discretenotions of personality and identity. Once identity is separated as a conceptuallydistinct issue, concerned as it is with the substance rather than the form of the state,much of the unnecessary rigidity in traditional doctrine may be avoided entirely. Thetask for the future, therefore, is to map out some of the characteristics anddeterminants of state identity in a way that takes into account not merely the formalproperties of statehood, but also the sense of'self, 'singularity', and 'community', thatjustifies the attachment of international legal obligations to particular territories andsocial groups. Without such a concept of Identity, international law will remainunable to appreciate properly, apart from in a very abstract or formal way, the sense oflegitimacy that underlies its claim to be the medium by which individual andcosmopolitan values and interests are pursued on the international plane.

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